Six Things That Osinbajo Cannot Do In Buhari’s Absence

President Muhammadu Buhari traveled last Thursday on a 10-day ‘private visit’ to London.

For the first time since becoming President, Buhari failed to inform Nigerians the purpose of his visit and had also refused to transmit a letter to the National Assembly to inform the legislature of his absence; nor did he name Vice-President Yemi Osinbajo as the Acting President.

The President’s action has generated a debate regarding Section 145 of the Constitution, which states, “Whenever the President is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect, and until he transmits to them a written declaration to the contrary, the Vice-President shall perform the functions of the President as Acting President.”

It adds that if the President does not return within 21 days, the National Assembly can, by a resolution, mandate the Vice-President to perform the functions of the office of the President as acting president.

According to the Constitution, the executive functions of the Vice-President include: participation in all cabinet meetings and, by statute, membership of the National Security Council, the National Defence Council, Federal Executive Council, and the Chairman of National Economic Council.

Although the vice president may take an active role in establishing policy in the executive branch by serving on such committees and councils, the relative power of the Nigerian vice president’s office depends upon the duties delegated by the President.

What are the things Vice-President Osinbajo cannot do in Buhari’s absence?

1. Appointments:

With the Presidency operating as one, the Vice-President cannot make any appointments of any sort as the Act establishing most government agencies and departments state expressly that “the President shall appoint.” Even the Vice-President’s personal staffers are appointees of the President, but are only seconded to his office.

The then Vice-President, Goodluck Jonathan, made this clear in 2009 when he refused to swear in the Chief Justice of Nigeria, Justice Aloysius Katsina-Alu, when President Umaru Yar’Adua was on medical leave in Saudi Arabia. It was eventually the outgoing CJN, Justice Idris Kutigi, who inaugurated his successor.

2. Fire appointees:

It will be recalled that Osinbajo had fired the acting Director-General of the Department of State Services, Lawal Daura, in August last year while Buhari was in London on vacation. Osinbajo was able to do so because he was acting President and could thus exercise the full powers of the President. But with Buhari’s refusal to hand over to him this time, Osinbajo cannot fire any appointee even if they’re found wanting. He will have to wait for his boss to return. Osinbajo also cannot reshuffle the cabinet or sack ministers.
 

3. Sign bills:

On June 12, 2017, acting President Osinbajo signed the 2017 Appropriation Bill into law and the budget was born. Buhari, who had been on medical leave for over 40 days at the time, had handed over power to his deputy to act in his stead. Now that the National Assembly has pass the budget, Nigerians will have to wait for Buhari to return next week for the budget to be made law.

4. Order the military:

Buhari, apart from being the head of the executive branch of government, is also the commander-in-chief of the armed forces. Put succinctly, Buhari is the only civilian that the military takes orders from. It was for this reason that Jonathan could not summon a security meeting until he was made the acting President by the Doctrine of Necessity in 2009. With the escalating security situation in the country, Osinbajo can only watch.

5. Write the National Assembly:

Unlike the United States where the Vice-President is also the Senate President, Nigeria’s Vice-Presidents have never really had any dealings with the Office of the Senate President except when the Vice-President is acting as the President. During his time as acting President between 2016 and 2018, Osinbajo wrote to the Senate many times. For instance, in 2016, he wrote to the Senate to confirm Justice Walter Onnoghen as the CJN. He also wrote the Senate to confirm Ibrahim Magu as the chairman of the Economic and Financial Commission. Osinbajo also cannot forward bills to the National Assembly.

6. Declare war/state of emergency:

Section 305 of the Constitution states expressly that only the President can declare a state of emergency or war.

It reads, “Subject to the provisions of this Constitution, the President may by instrument published in the official gazette of the Government of the Federation issue a proclamation of a state of emergency in the federation or any part thereof.

“The President shall immediately after the publication, transmit copies of the official gazette of the Government of the Federation containing the proclamation, including the details of the emergency, to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the proclamation.”

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